Who I and why?

I'm a keen reader of blogs and read a wide range including Bystander's Magistrates' Blog, the Anonymous Prosecutor, several police blogs, Frank Chalk and Winston Smith. There are others, but those are the main ones.

Wayne’s solicitor is clearly speaking about a different person to the one that Mandy and I have been dealing with. The Wayne he speaks of is a loving father to his new baby, a man riven by guilt and remorse at his previous behaviour, a man deeply committed to change, a man who now wants to do volunteer work in his community. A man clean of drugs who has, yes, failed his last two drugs tests at probation, and missed the last twelve, but still, he is trying. This is a very changed man your worships. Changed even since the last time, and the time before that, when he was also changed from the time before that. The solicitor is cleaver. He doesn’t believe a bit of this. He is careful to say ‘my client tells me that….’ before each lie. But school fees are school fees.

I suspect from Gadget's final remark about school fees that he places defence lawyers in the same category of wrong 'uns as our clients. This is not a unusual attitude in my experience. Most people realise that lawyers have a job and do that job, but some people think that we are somehow colluding to get our clients off at all costs. I think every defence lawyer will at some point experience the onslaught of a non-lawyer (probably in the pub) who wants to take you to task about your dealings with criminals and will ask you repeatedly how you can do you job etc etc. So, I thought I might try to explain what we actually do.

Do we help clients fabricate their accounts to escape justice? Well, the truth is that yes some solicitors will do that. In the same way that some police officers are corrupt, some medics kill their patients and sometimes a sportsman will take a bribe to throw a game. Should they do it? Of course not and the sooner such people are caught and thrown out of the profession the better. Like most solicitors I am honest and am not interested in helping a client make up things to get him off. When I hear of solicitors risking their career and putting their families in financial jeopardy I am always amazed at their stupidity.

For the vast majority of solicitors in my field, the job involves obtaining disclosure whether in writing or orally from a police officer at the police station. I then make an assessment of that evidence - what is it? Is it reliable? Does the evidence support the charge/allegation? Is information being kept from me? At police stations pre-interview it is common in serious cases for some information to be kept back as officers are not required to disclose any of their evidence if they don't want to. I'll look at a whole range of other things including whether the evidence is actually admissible etc. Once that is done I'll speak to the client. I'll tell him about the evidence and my views of it. I'll explain the law both what the prosecution need to prove to convict him and any defences that exist to the allegation. As part of this, I will listen to his account. After that is done I will give him some simple advice along the lines of you need to plead guilty or not guilty.

It's up to the client whether he accepts my advice, most do but some don't. One client refused my repeated advice that he should plead guilty to a burglary charge on the basis that he was seen climbing out of the window where his finger prints were found on the inside. He refused my repeated advice and we went to trial at the crown court. Now this presents an interesting challenge that Gadget alluded to in his post. I don't really believe what the client is saying; however, I have a professional duty to act in the client's best interests and am barred from refusing to represent him once a retainer is in place. This is how you sometimes get to the point of hearing cliches such as "I am instructed that..." or "My client tells me that..." On a side note, we've all done it but I think that this is very poor advocacy and it is the sort of thing that previous Lord Chief Justices have frowned upon - anybody with any common sense knows that if you say "John loves his son and wants to change his ways" then you can only be relaying information from John so why say it in the first place. In any case, now that I am instructed I have to continue unless I become professionally embarrassed - and not believing a client is insufficient for that test. In the case of my alleged burglar he went to trial and much to my surprise was acquitted by a jury in less than 15 minutes! In other cases, ignored advice has led to a more predictable outcome, with the consequence that the client loses the reduction in his sentence he would have received for pleading.

Of course you wouldn't and if you ever find yourself accused of a crime you didn't commit (or maybe one you did) you'll be pleased that there are people like me ready to help you.

You may (or may not) be wondering why I became a solicitor. Did I do it out of a sense of justice? Do I hate the police/authority? Was I hoping to become rich? Well, the answer to all of these questions is NO. The truth is I'm not sure how I got here. I've never had the almost religious urge to fight for justice that some lawyers seem to have. Outside of work I've only ever had positive encounters with the police (including the time I was pulled over for jumping a red light). I definitely haven't become rich doing this job, although I'm not about to pretend that I'm on the breadline. But, I'm here now and I will carry on doing my best for clients no matter what their circumstances and I'll still put forward their instructions no matter how unbelievable their claims may be.

Comments

As a regular reader of the 'Magistrates Blog, On Probation and Winston Smith I look forward to your musings (and rants). I work as a Probation Officer, 'setting up' the defence you put forward for your clients. Very much along the lines of 'Mr Smith advises me...Mr Smith asserts that he has little recollection of the offence which he attributes to his level of intoxication, Mr Smith claims to regret his actions, even more that the last, similar, offence.

Obi Wan, when I first started off in this job the firm I worked for was very young - the partners were in their early 30s and the solicitors were all in their 20s - it was very common to hear people talk about the whole thing being a game back then. I hope it's more than a game, but I'm not certain it is!

Not Long, thanks for saying hi. I think I must have upset Gadget as he seems to have removed my comments from his blog.

Came over via Gadget. SImple 24/7 response oxen here. Interesting post. I have to say that for the most oart my experiences with solicitors have been positive. That said I've never had anything really worth holding back any disclosure on!

It's a real shame that simply not believing a client isn't sufficient to "embarrass" you professionally. I wonder how often saying those words in front of the magistrate or judge sticks in your throat? Quite often when I bring a regular in to custody and he names the solicitor he wants as they "always look after him" , said solicitor rolls his eyes at being phoned and says "oh for ****! sake" and then says "I'll be along in the morning, I'm not coming out now"

Nah, most solicitors aren't bad in my experience, just as trapped as we are.

It's the toothless inefficacy of the courts that grips me. But even then it's more the result of endless fiddling by Whitehall than bad faith on there part. And that's the problem, tracking down just who *IS* to blame for the broken CJS. THey are always, seemingly, one step further up the chain.

Phatboy - pleased to see that someone has taken up the mantle and is posting from our side of the fence.

Reading what you had to say about your burglar resonates with me. Years ago I had a client who was originally charged with s20 (in the days before pbv) and Mags declined jurisdiction. Evidence overwhelming on the papers plus aggrieved had a hunchback, clubfoot and cystic fibrosis.

CPS review the case and reduce charge to s47. In addition cps now say case is suitable for summary trial. I advise electing trial in Mags. Client rejects my advice, the advice of my boss, and the advice of junior counsel.

Gloriously acquitted at trial - it was something to do with a plastic child's slide but so much time has elapsed that I cannot remember much more.

What I learnt from that little episode was that sometimes I had to trust my clients.

As to anonymous' comment that no one can be found who is responsible for the broken system - the answer is that we all played a part. We did it together. The major player was however the last government. That organization (if you can call them organized in any way) undermined each and every part of the system.

To the defence they removed suspects rights. To the police they introduced meaningless targets. To the Courts they reduced funding etc. etc.

It must be difficult, at times, to believe a client who protests his innocence. Whilst I do not entirely share his view, and recognise the differences between the respective legal systems, I found Alan Dershowitz (of 'if the glove doesn't fit, you must acquit fame) arguments in 'Letters to a young lawyer' (Basic books, 2001) on the moral argument for representing a client irrespective of your opinion of his guilt to be quite persuasive.

Well said.In my experience most lawyers of whatever hue are decent people doing a decent job. The fact that we deal with some of life's more shadey characters, who you wouldn't want to meet on a dark night is irrelevant. We are supposesd to live in a decent society and therefore everyone who comes into contact with the state, where their rights can be interfered with needs a bit of help.

Of course it happens, Laban. But against that you must put the disturbed or addicted wreck or the sad loner who has been acused of something and is incapable of putting up a defence without help, and who will no longer get legal aid. There are two sides to every story.

Just wandered over from the "Magistrates Blog" welcome! I have to agree with Bystander's comment about the accused person being incapable of a defence, in fact I have a deeper fear that such persons would be targeted by the police in order to provide some quick clear ups.

Nick very good first post and nice to see your viewpoint out there. I find the majority of our defence solicitors to be very good. The trouble with Gadget is he believes in the canteen culture too much and goes over the top.

Welcome to the blogosphere, Nick, I look forward to reading your stuff and posting when I am so moved. In my experience most of the defence briefs in our court are okay up to excellent, but the few bad ones are VERY bad and my heart sinks when they come in and settle themselves down on the advocates' bench.

Gadget is obviously a decent man and has to deal with societies shit so it`s inevitable that he sometimes goes OTT, he`s only human.The rest of you,magistrates,defence solicitors etc., don`t have to face them in their natural habitat and can more easily remain somewhat detached.Remember it`s in offenders interest to appear to be victims and behave quite reasonable in front of the people who can get them off.

In your case Nick, you may count yourself fortunate that your Gadget experience was limited to censorship only. Inspector Gadget is keen to withhold balanced criticism from his blog. He will lose or deface evidence which could be of any use to the defence. My double star billing involved quotations which had been fabricated and ascribed to me, changed, added to or misrepresented. I was granted no right of reply and in my pains to publicize wrongs within police and CJS, I have been the victim of his smear campaigns. The evidence fixing and framing which convicted Commander Dizaei can be thus be found on Gadget.

A high public profile separates one dodgy policeman from the anonymous. The certainty of being bound for high office and being feared, triggered the proceedings against the former and permits Gadget to continue. Dizaei was a liar, thug and evidence fixer in uniform. However that profile equally applies to Gadget and his blog brazenly outrages decency and drags the reputation of police into further disrepute.

If the Dizaei incidents merited criminal investigations/proceedings, Gadget should face nothing less. Assuming that is, there is any real intention to put an equitable end to a plague of corrupt policemen and their sniggering schoolboy 'Police Evidence'.

The way people respond in these situations is always of interest to me. Only last week was speaking to a long-standing copper, he told me about how, ten years or so ago, they always made sure they turned the radiators down in the interview room so it was cold for the solicitors. He went on about how could a solicitor defend the scum of the earth.

But, when the job of a solicitor is simply to put forward (having been trained to do so) the points of the client but perhaps with eloquence and skill, then what is the problem. I too read Gadget's blog. What the alleged solicitor is alleged to have said seems to me nothing that the defendant wouldn't have said if he could. No lies being told, no truth withheld.

So what would the "hangem" (or in Gadget's case the "shootem") brigade want? If the solicitor were banned from representing the client if he didn't like him / believe him, then what - do we let the defendant speak for himself? If so, he will presumably say the same things that the police don't like.

So what then? We ban the defendant from speaking altogether! That's a good idea - he's lying and guilty anyway. Oh, but wait. He might get his mates in to say lies for him. I know, let's ban him from having witnesses. The CPS , sorry they're the enemy too, the Prosecuting Inspector, should present the evidence, and then the defendant, sorry criminal, gets convicted. And (if you read other Gadget posts) gets the maximum sentence.

And why not, it worked in Norman England, probably works in China, Iran, Afghanistan.

And the other thing that makes me laugh is the idea of solicitors sending their children to private school. I don't do criminal, or legal aid work myself, but have done both in the post. I can tell you that most solicitors working in legal aid will not be getting the pay of an Inspector (£47,000 to £51,000 this year). I think I read somewhere the average was around a few thousand over half that.

But I don't suppose that the truth will matter that much. Why bother with facts and logic, when you have "common sense"

You miss/misrepresent the point I think. If the defendant had said any of those things to the magistrate he would indeed be lying under oath something the solicitor carefully avoids doing with "my client tells me that . . ."

Beat me to it - I also don't understand it to be the case that anything said was a factual statement to which truth or falsity could be ascribed, i.e. "I am a changed man", "I won't do it again", "I love my kids and my family".

It would be entirely different if the solicitor said on behalf of the client "my client instructs me that his name is 'Daniel Smith'" with a view to setting up a false alibi, or hiding a previous conviction, etc. But two things would then follow anyway, which are 1) The words "my client instructs me" are (as you rightly said) improper as by their very use the implication is that the following may not be true - a clear breach of professional duty in my view except in an unusual case I haven't thought of. Secondly, it would be a breach of the Code of Conduct by both misleading the court and failing to correct an erroneous impression. (The guidance notes paragraph 12 to rule 11 of the SRA Code refer).

Ultimately we all do our jobs for money, (except magistrates who I adore despite the popular belief). I very quickly gave up caring what happened to my customers. It's so often out of my control, if the evidence is there, fine, if it isn't also fine.

I have a sneaking suspicion that defence solicitors feel exactly the same most of the time. When I started I saw the defence solicitor as the enemy. Silly really, the only gripe I have with them now is that I have to wait for them to get there before interview. Some of them are even human and will laugh or drop their head and shake it when their client says something incredibly stupid in interview.

As I always think to myself, if I ever got arrested the first thing I would do is ask for a brief. Why should most of my customers settle for anything less.

Gadget is obviously a decent man and has to deal with societies shit so it`s inevitable that he sometimes goes OTT, he`s only human."

The truth is that Gadget's views and my own aren't a million miles apart - I sympathise with him and other officers a lot. I've seen some of my client's go off on one at police officers - in fact one started fighting with a custody sgt and then turned to me, middle grapple, to demand I wade in to physically defend him! I turn that one down.

The comment I made that was removed was just that I pointed out that a community order with unpaid work could not be imposed in a situation where probation said that the defendant was unsuitable for unpaid work.

Nick (aka Phatboy, aka The Defence Brief... I'm gonna settle on a name at some point in my life).

Dominic said :"I can tell you that most solicitors working in legal aid will not be getting the pay of an Inspector (£47,000 to £51,000 this year). I think I read somewhere the average was around a few thousand over half that."

A few years back it was the case that when you became a duty solicitor you could pretty much immediately expect a salary of £40,000 and beyond that you might get a profit sharing deal. One solicitor here received 5% of each case he conducted as fee-earner. Currently, I earn a basic salary of £35,000 as duty/HCA! Pay has fallen considerably over the years.

Dave, I love each and everyone of my clients and want nothing for the best for everyone of them!! lol. I remember those cold old interview rooms - never works on me, I always loved the cold!! A few stations such as Bethnal Green have converted old cells into consultation rooms, which isn't great as they are uncomfortable and most of what you say can be heard outside.

SouthLondonJP (and everyone else who's said Hi), thank you very much. Hope I can be of some interest over my time doing this.

Actually Ed, I was once in the allegedly high security Paddington Green Police Station when a custody sgt mistook me for a policeman and ordered me to look somebody in a cell... I obliged and got a cup of tea for my troubles when she realised who I really was.

Anon @15.54 said "It's a real shame that simply not believing a client isn't sufficient to "embarrass" you professionally"

I have to disagree. It isn't the job of a defence advocate to determine guilt. That is the job of the Magistrate or Jury. And not eveyone who is initially unconvincing, or against whom there is circumstantial evidence, is guilty.

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